Monday, October 22, 2018
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With Due Respect

Most formidable challenge to federalism

The most formidable challenge to federalism is the utter lack of time for Congress to approve properly the proposed federal constitution, and to have it ratified befittingly in a plebiscite to coincide with the midterm election on May 13, 2019.

The challenge is so formidable that Speaker Pantaleon Alvarez proposed the unthinkable: the cancellation of the midterm election so the lawmakers can focus on Charter change instead of campaigning for their reelection and “political survival.”

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Unless the election is canceled, Alvarez warned that it is difficult, if not impossible, to have a legislative quorum, much less to muster the required three-fourths vote to pass the proposal. Of course, the lawmakers would have the bonanza of extending their terms indefinitely without undergoing an election.

After initially remonstrating, Senate President Tito Sotto supported the cancellation. However, sensing the public mood, presidential spokesperson Harry Roque ended the debate, saying the President wants the midterm polls held as scheduled.

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Back to the legislative mill, even if the lawmakers could be shepherded to a quorum, the time challenge would still be forbidding. The 1987 Constitution requires revisions to be “ratified … in a plebiscite [to] be held not earlier than 60 days nor later than 90 days” after their approval.

Hence, the new constitution should be approved by Congress no later than March 13, 2019, the 60th day prior to May 13, 2019. Given its All Saints Day recess of two weeks and its Christmas break of one month, the legislature would thus have only about six months to perform this vital constituent function.

While the lengthy draft (longer than the present Charter) prepared by the consultative committee (ConCom) had been transmitted by the President to the legislature, Speaker Alvarez made it clear that the House (and probably the Senate, too) will carefully scrutinize it. After all, it is Congress, not the ConCom, which had been constitutionally tasked to undertake the revision.

The 1986 Constitutional Commission, working full-time daily, took about a year, including ratification, to complete the 1987 Constitution. The ConCom itself, also working full-time daily, took about six months, from January to July this year, to finish its draft. In contrast, Congress cannot work full-time daily. It needs to pass many vital measures like the budget, which normally takes four months.

Moreover, the ConCom’s draft differs substantially from that approved by the House committee on constitutional amendments. The ConCom patterned its output after the American system with a bicameral Congress that is independent from and is the coequal of the president. On the other hand, the House committee favored the presidential-parliamentary model that is more akin to the French system that has no vice president, but has a parliament that elects a prime minister who works in tandem with a nationally elected president.

The House version hews quite closely to the ruling PDP-Laban Party’s concept which has a president as “head of state … directly elected by the people … responsible for national defense and foreign affairs” and a prime minister, as “the head of government… elected by the House of Representatives/National Assembly … and responsible for domestic and economic policy.”

Quite apart from these differences, the ConCom draft contains controversial provisions, among them:

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1) A confusing federal judicial system with four different high courts that are “supreme” in their own spheres: the “Federal Supreme Court, Federal Constitutional Court, Federal Administrative Court and Federal Electoral Court,” each one having a chief justice and several associate justices. This structure is more characteristic of the Russian system than the American one.

2) Another set of courts on the regional level, the “Regional Supreme Court and Regional Court of Appeals.”

3) While the power to impeach is lodged in the “Joint Impeachment Committee of Congress,” the power to try and remove officials is granted to the Federal Constitutional Court and the Federal Administrative Court.

In sum, six months would be utterly insufficient to resolve all these problems, given a Congress saddled with other vital work and with members campaigning for their political survival.

Comments to chiefjusticepanganiban@hotmail.com

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TAGS: charter change, Constitution, federalism, Government, Rodrigo Duterte
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